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(c) Relevant procedure, prescribed in Section 110(4) of the MPLRC and Rule 32 of the Mutation Rules, was not followed.

(d) By virtue of the provisions of Section 178 of the MPLRC, petitioner Vivek Tripathi, being a Naib Tahsildar, was not legally competent to deal with the prayer for partition between Smt. Indira and her husband Augustine Pastala of the land said to have been acquired by her only. Moreover, he directed substitution of their names in the record-of-rights wherein Dayabai was shown as the sole-Bhumiswami of the land. This apart, for the purpose of stamp duty payable on the partition deed, he assessed the value of land as 60 times of the lease rent that was fixed as Rs.1.44 and accepted stamp paper of Rs.100/- while ignoring the fact that a stamp duty was payable on Rs.1,37,898/-

W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 had entertained an application under Section 113 of the MPLRC despite the fact that such an application could be entertained by Sub-Divisional Officer only. In other words, it was not her official or judicial duty to entertain the application under Section 113 thereof.

12. Learned Senior Counsel, however, submitted that in-fact, she had not acted under Section 113 of the MPLRC that relates to correction of clerical errors and any errors made in the record-of- rights, but had proceeded under Section 115 of the MPLRC, which empowers the Tahsildar to correct any wrong entry in Khasra. Placing reliance on a decision of the Supreme Court in State of Karnataka v. Muniyalla AIR 1985 SC 470, he has argued that mentioning of a wrong section would not invalidate an order, which is otherwise within power of the authority making it. He is further of the view that if the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of a power in question. For this, we have been reminded of the principle of law, as laid down by the Apex Court in P. Balakotaiah v. Union of India AIR 1958 SC 232 and reiterated in Afzal Ullah v. State of U.P. AIR 1964 SC 264, J.K. Steel Ltd. v. Union of India AIR 1970 SC 1173 and Palaniappa Gounder v. State of Tamil Nadu AIR 1977 SC 1323.

W.P. Nos.5959/2008 & 2571/2011and MCrC No.4261/2010 taken by her. It is, therefore, difficult to conclude that whatsoever she had done was done in the discharge of her official duty. Moreover, she had transferred the case to Naib Tahsildar (Nazul) who had no authority to deal with the application under Section 115 of the MPLRC. As indicated already, the case was transferred to petitioner Vivek Tripathi on 22.04.2002 and instead of pointing out that he had no authority to deal with the application apparently under Section 113 or to treat it as an application under Section 115, he proceeded in altogether different direction by requiring the applicant to satisfy himself on the point of jurisdiction in view of Section 178 of the MPLRC whereas, a bare perusal of the application filed by Shri Umesh Tripathi on 14.03.2002, would reveal that he did not even refer to Section 178. Moreover, as rightly pointed out by learned Special Public Prosecutor, partition could be effected between two co-sharers whereas by way of partition deed, Indira Pastala was trying to create co-ownership of her husband in respect of land said to have been acquired by her from Dayabai despite the fact that in the revenue record, the land continues to be in the name of Dayabai only.

20. Learned Senior Counsel has strenuously contended that none of the Inspectors, who had the occasion to make enquiry into the complaints, were able to collect even an iota of evidence to indicate criminal intent on his part. Attention has also been invited to the fact that refusal to exercise power conferred by Section 51 of the MPLRC to review the order-dated 21.05.2002 would have resulted in much serious consequences including loss of revenue to the State exchequer.

21. In response, learned Special Public Prosecutor has submitted that petitioner Alok Kumar Shrivastava ought to have refused to exercise the power to review, saying that (i) the order-dated 21.05.2002 was without jurisdiction as the powers under Section 113 of the MPLRC could only be exercised by a Sub-Divisional Officer and also that (ii) the powers, under Section 178 of the MPLRC, which could be exercised by Tahsildar only, were wrongly usurped by petitioner Vivek Tripathi. He has further pointed out that by virtue of the order-dated 16.05.2008 passed by a Single Bench of this Court in Meena Mehra's case (W.P.No.5959/08), the matter could not be investigated till 03.01.2011. Reference has also been made to the observations made in Deo Vrat Mishra's case (above) that absence of direct evidence as regards particular accused relating to conspiracy is without significance as, being secretly planned, it can be proved by circumstantial evidence.